News & Resources


Jul 3, 2020 in Case Law Updates by

By: Nikolaos Manuel Hernandez, Esq.

Recently, the Fifth District Court of Appeal tackled the ever present dispute over the discoverability of photographs within an Insurer’s claim file and underwriting files. In the case of Avatar Property & Casualty Insurance Company v. James Simmons, Case No. 5D20-304 (Fla. 5th DCA 2020), the Court denied Petitioner’s, Avatar Property & Casualty Insurance Company (“Avatar”), petition for certiorari based on the trial court’s order requiring Avatar to produce photographs within its file pertaining to conditions of the property. The Court held that Avatar failed to demonstrate that the trial court’s order compelling discovery departed from the essential requirements of law and, as a result, denied Avatar’s petition for relief.

James Simmons, brought suit against his insurer, Avatar, claiming breach of contract arguing Avatar failed to perform its duties under the policy of insurance following a claim. During litigation, Avatar was served with requests for production. At issue were requests for “any and all videos and photographs in [Avatar’s] possession related to [Simmons’] claim in their native digital format” as well as a request for “The complete underwriting file with regard to [Avatar’s] issuance of insurance on the subject risk, and all renewals.”

Avatar, in response to these requests, claimed the documents were protected by the work-product doctrine and attorney-client privilege. In addition, Avatar claimed that the documents requested relate to internal claims handling procedures and, therefore, objected to turning the documents over. Under the work-product doctrine, “documents prepared by or on behalf of a party in anticipation of litigation are not discoverable.” (see Liberty Mut. Fire Ins. Co. v. Kaufman, 885 So. 2d 905, 910 (Fla. 3d DCA 2004)); (citing Fla. R. Civ. P. 1.280 (b) (3)). However, the decision ultimately appeared to rest on Avatar’s inability to carry its burden of proof as to the applicability of the privilege and that they could not carry this burden with a bare assertion that a specific document is held within its claim file. Avatar Prop. & Casualty Ins. Co. v. James Simmons; (quoting Homeowners Choice Prop. & Cas. Ins. Co. v. Avila, 248 So. 3d 180, 184 (Fla. 3d DCA 2018)); (see, e.g., Hartford Acc. & Indem. Co. v. McGann, 402 So. 2d 1361, 1362 (Fla. 4th DCA 1981)).

Simmons argued, that Avatar had no basis to assert the claim file as privileged as the requested information was prepared in the routine, normal course of claims handling. Avatar Prop. & Casualty Ins. Co. v. James Simmons. Stated differently, other than a categorical claim of privilege, Avatar failed to demonstrate the photographs were prepared in anticipation of litigation and further failed to present the trial court with any documentary evidence, such as an affidavit, which would support its contention that the photographs at issue were protected by the work-product privilege.

The Court explained that Avatar’s categorical objection, serving as the only basis for its work-production objection, and therefore, failed to demonstrate a departure from the essential requirements of law resulting in a miscarriage of justice. As such, it is important for an Insurer to recognize its burden to prove that privilege does apply before claiming it as a basis for withholding documents from discovery. And in recognizing that burden, must do more than just raising a blanket assertion.

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